Deposition of Dr. Barry McCasland regarding IME

Deposition of Dr. Barry McCasland regarding IME

[Client Name Redacted]

McCasland, M.D., Barry, (Pages 1:1 to 90:24)






  2. 11-A-4554-2




May 24, 2013

2:06 p.m.

Center for Specialty Medicine at

Saint Joseph’s Hospital

Suite 515

5671 Peachtree Dunwoody Road, NE

Atlanta, Georgia

Genevie Morell, RPR, CCR-2760



EXHIBIT       DESCRIPTION                    PAGE

For the Plaintiff:

#1            Amended Notice of Deposition of

Barry McCasland, MD…………….5

#2            Curriculum vitae……………….6

#3            Correspondence between Dr. McCasland

and Hawkins Parnell……………11

#4            Chart 1 of 2………………….12

#5            Chart 2 of 2………………….12

#6            Independent medical examination


#7            Detailed patient visit invoice….30

#8            Handwritten list of “relied upon”.31

#9            Handwritten list of “reasons

believe highly suggestible

personality type”……………..53

#10           Case list…………………….73

#11           Consultation………………….77

#12           North Fulton Hospital chart…….78

#13           North Fulton Hospital discharge


#14           North Fulton Hospital



#15           North Fulton Neurology record…..80

#16           Medical narrative of Dr. Alan M.

Harben regarding patient [REDACTED]


#17           Deposition information sheet……86

#18           Notice of Deposition of Barry

McCasland, MD…………………86


By Mr. Butler…………………………….5



On behalf of the Plaintiff:


Butler Wooten & Fryhofer LLP

2719 Buford Highway

Atlanta, Georgia  30324


On behalf of the Defendant:


Hawkins Parnell Thackston & Young, LLP

4000 SunTrust Plaza

303 Peachtree Street, NE

Atlanta, Georgia  30308


(Pursuant to OCGA 15-14-37 (a) and (b) a

written disclosure statement was submitted by the

court reporter to all counsel present at the

deposition and is attached hereto.)


1                 BARRY J. MCCASLAND, MD,

2   having been duly sworn, was examined and testified as

3   follows:

4                        EXAMINATION


6            MR. BUTLER:  This will be the deposition of

7   Dr. Barry McCasland taken pursuant to notice and

8   agreement in the case of [REDACTED] against Home Depot.

9   It will be taken pursuant to the Civil Practice Act

10   for all purposes permitted under the Civil Practice

11   Act.

12            Would you please state your full name for

13   the record.

14        A.  Barry John McCasland.

15        Q.  I know you’ve given depositions before, but

16   just to go over it one more time.  If I ask a

17   question that is unclear, that you don’t understand,

18   please ask me to rephrase and I’ll do that.  Is that

19   fair?

20        A.  Yes, sir.

21        Q.  If you do answer the question, I’ll assume

22   that means you understood it.  Is that fair?

23        A.  Yes, sir.

24            (Exhibit 1 marked.)



1        Q.  I’ve marked as Exhibit No. 1 a copy of your

2   notice of deposition with a list of things I asked

3   you to bring.  Is that true?

4        A.  Yes, sir.

5            (Exhibit 2 marked.)


7        Q.  And I think you brought a CV pursuant to my

8   request and I’ve now taken that and marked it as

9   Plaintiff’s 2, is that right?

10        A.  Yes, sir.

11        Q.  What’s the name of the company for which

12   you work?

13        A.  Bernstein and McCasland MD, PC.

14        Q.  I understand there’s a doctor — I’ll start

15   an exhibit stack over here.  So the question is, I

16   understand there’s a Dr. Bernstein in your practice,

17   and you.  Are there any other doctors?

18        A.  Presently, no.

19        Q.  How many employees do y’all have?

20        A.  Five.  They’re clerical.

21        Q.  I think at one point there was a third

22   doctor practicing with you all.  Am I wrong about

23   that or has he since left?

24        A.  There was.  In fact, on two occasions there

25   was a third doctor, two different individuals.


1   They’ve both come and gone.

2        Q.  What’s your area of expertise as relevant

3   to this case?

4        A.  I’m a general adult neurologist.

5        Q.  I presume you’ve been qualified to testify

6   by Georgia courts in that area before as an expert,

7   is that right?

8        A.  Yes, sir.

9        Q.  Have you been qualified in any other areas

10   to testify as an expert in Georgia courts?

11        A.  No, sir.

12        Q.  Are there any other areas in which you

13   consider yourself an expert qualified to testify in

14   Georgia courts?

15        A.  No, sir.

16        Q.  Are you ready to testify in this case?

17        A.  Yes —

18        Q.  I cut you off.  Go ahead.

19        A.  Yes, sir.

20        Q.  If the trial was tomorrow, you’d be ready

21   to go, is that right?

22        A.  Yes, sir.

23        Q.  Is there any work that you wanted to do but

24   Home Depot or Home Depot’s lawyers suggested you not

25   do in this case?


1        A.  No.

2        Q.  Any work that you wanted to do but you were

3   prevented from doing by someone else?

4        A.  No, sir.

5        Q.  Have you met with lawyers who retained you

6   in this case before?

7        A.  No, sir.

8        Q.  Have you not met with Mr. Keith or Mr. Fox

9   before today?

10        A.  No, sir.  I just met him walking in the

11   door.

12        Q.  Is this the first time you’ve ever worked

13   with the Hawkins Parnell law firm to the best of your

14   knowledge?

15        A.  I’m asked that question all the time, sir,

16   and, honestly, having not a lot of familiarity with

17   the law firms, I really don’t know.

18        Q.  Okay.

19        A.  Also, I’ve seen people go from one firm to

20   another and answered that question how I thought it

21   should be and then found out I was wrong.  So I don’t

22   know.

23        Q.  Had you ever spoken with — we’ll take the

24   two lawyers in the case for Home Depot one at a time.

25   Had you ever spoken with Mr. Shane Keith, who is


1   seated to my left, before today on the phone or in

2   person?

3        A.  Not to my knowledge.

4        Q.  How about Warner Fox, ever spoken with him

5   on the phone or in person?

6        A.  No, sir, I don’t believe so.

7        Q.  Do you know who that is?

8        A.  No, sir.

9        Q.  How did you become involved in this case?

10        A.  Someone contacted my office to schedule an

11   independent medical examination.  It was placed on my

12   schedule.  Medical records arrived and on the

13   assigned day, she came to my office.

14        Q.  Do you know who first contacted your

15   office?

16        A.  No, sir, I don’t.

17        Q.  Have you ever done any work for Home Depot

18   before?

19        A.  Not that I can recall.

20        Q.  Do you have any idea who suggested your

21   name to the attorneys who represent Home Depot in

22   this case?

23        A.  I do not.

24        Q.  Were you surprised when the IME appeared on

25   your schedule?


1        A.  No, sir.  I do IMEs once, sometimes twice a

2   week.

3        Q.  What did you do to prepare for this

4   deposition?

5        A.  Went over my IME report and gathered the

6   things that you asked for, absent the billing

7   records, which is my fault.

8        Q.  I think the billing records are on the way.

9   I heard you place a call before we went on the

10   record, is that right?

11        A.  The staff is working on them.

12        Q.  And the other documents to which you

13   referred are here on the table between us, is that

14   right?

15        A.  Yes, sir.

16        Q.  I wanted to ask about correspondence that

17   had passed between your office and the law firm of

18   Hawkins Parnell, and I know from our discussion

19   before we went on the record that some of it is in

20   these folders.  I’m going to try to mark it in some

21   organized way.

22            Would this document have come in, is that

23   correspondence, or is that something generated

24   entirely within your office?

25        A.  Generated entirely within my office.


1        Q.  I’ve pulled out some loose papers out of

2   your file and have paper clipped them together.  My

3   understanding is that what I hold in my hand and am

4   about to hand to you is not all the correspondence

5   you have between your office and the lawyers in this

6   case, but it is some of that correspondence, is that

7   right?

8        A.  Yes, that’s correct.

9            (Exhibit 3 marked.)


11        Q.  Have I now marked the stack of documents to

12   which we just referred as Plaintiff’s Exhibit 3?

13        A.  Yes, sir.

14        Q.  Where would I find the remainder of the

15   correspondence?

16        A.  The initial correspondence would be in the

17   first chart on the left side.  Other than the

18   demographic sheets, identification and consent form,

19   it would be these sheets here in my hand.  These

20   represent telephone conversations back and forth

21   between my staff and whoever scheduled the IME.

22        Q.  Then I’ll go back and clean this up on the

23   record in a second.  It looks like this is

24   correspondence.  I’m thinking there’s no other

25   correspondence in this stack here.  Do you think


1   that’s right?

2        A.  I believe that to be the case, yes.

3        Q.  Okay.

4        A.  There’s some other pages here which may

5   very well be the same ones that are in this chart.

6   Once again, these are office documents from my office

7   that are involved in the scheduling of the IME.

8        Q.  I see, doctor, that you’ve brought two big

9   red folders with you today.

10        A.  Correct.

11            (Exhibit 4, Exhibit 5 marked.)


13        Q.  And I’ve now marked those two folders as

14   Plaintiff’s Exhibit 4 and 5, is that right?

15        A.  Yes, sir.

16        Q.  Is it true that contained within

17   Plaintiff’s Exhibit 3, 4 and 5 we have all the

18   correspondence between your office and the defense

19   firm involved in this case?

20        A.  Yes, sir, to the best of my knowledge

21   that’s the case.

22        Q.  When did you get the medical records in

23   this case?

24        A.  I don’t know exactly.  They probably showed

25   up just prior to the actual appointment.


1        Q.  By the “appointment,” you mean the IME that

2   occurred on, I believe it was April 17 of this year,

3   is that right?

4        A.  That’s correct.

5        Q.  Have you ever made a presentation to an

6   audience that consisted of mostly lawyers?

7        A.  No, I can’t recall that I have.

8        Q.  Ever attended a presentation or seminar

9   where it was mostly lawyers present?

10        A.  No, sir.

11        Q.  How do you and Mr. Bernstein market this

12   practice?

13        A.  We don’t.

14        Q.  You don’t market it at all?

15        A.  Do you mean advertise?

16        Q.  Advertising would be a part of it.

17        A.  Okay.  If you mean other than that,

18   generally in medicine you establish good

19   relationships with referring doctors and they send

20   you patients and if they’re in turn happy with the

21   care their patients have gotten, they send you more.

22   If they’re not, they send you fewer.

23        Q.  What about in terms of marketing for

24   litigation work to include IMEs and record reviews

25   and things like that?


1        A.  Honestly, sir, I don’t reach out to anybody

2   and ask for it.  It simply comes in.

3        Q.  Does this office do any printed advertising

4   at all?

5        A.  No, sir.

6        Q.  Online advertising?

7        A.  No, sir.  We have a web page, but it’s

8   mostly a communication portal prior to appointments.

9        Q.  I understand you’ve reviewed some medical

10   records in preparation for the IME and in preparation

11   for your deposition today.  Are all the records that

12   you reviewed here on the table between us?

13        A.  Yes, sir.

14        Q.  And then I noticed some depositions in

15   either Plaintiff’s Exhibit 4 or Plaintiff’s Exhibit

16   5, I can’t recall which, are all the depositions that

17   you reviewed here on the table between us?

18        A.  Well, I didn’t review any depositions.

19   They’re not medical records.

20        Q.  Other than the medical records, what

21   documents are you relying on for your opinions in

22   this case, if any?

23        A.  None.  The only exception to that is here

24   in my hand.  This arrived in the last day or two.  It

25   was not part of my opinions when I created the IME


1   and I think it’s an engineering report.

2        Q.  Are you looking at the thing from SEA?

3        A.  Yes.  I paged through it within the last

4   couple of days, but it was not part of — it was not

5   present when I did my IME.

6        Q.  I see.  So the documents you’re relying on

7   for your opinions in this case include the SEA

8   document that’s a part of Plaintiff’s Exhibit 3 and

9   the medical records that are in Plaintiff’s Exhibit 4

10   and 5, is that right?

11        A.  Correct.

12        Q.  Am I missing anything?

13        A.  Not that I know of.

14        Q.  Is it your position that any of the other

15   doctors who have been involved in Ms. [REDACTED]’s care

16   committed malpractice or were incompetent?

17        A.  No, sir.

18        Q.  Those doctors carried out their own

19   evaluations of Ms. [REDACTED] and then recommended care

20   as they thought was clinically appropriate, is that

21   right?

22        A.  Yes, sir.

23        Q.  Do you criticize them for doing those

24   things?

25        A.  No, sir.


1        Q.  In fact, that’s what doctors are supposed

2   to do, right?

3        A.  Correct.

4        Q.  You’re not testifying that they were

5   incompetent in making their diagnoses or making their

6   recommendations for treatment, is that true?

7        A.  No, sir.  I mean, yes, it is true that I’m

8   not.

9        Q.  That’s my fault.  I should clean that up.

10            Is it true that you are not testifying that

11   the other doctors who were involved in Ms. [REDACTED]’s

12   care were incompetent or committed malpractice in

13   either making their diagnoses or making their

14   recommendations for treatment?

15        A.  That’s correct.

16        Q.  In fact, a doctor has a right to form his

17   or her own clinical judgments and recommend the

18   course of treatment that that doctor thinks is

19   appropriate, is that true?

20        A.  Yes, sir.

21        Q.  You’re not criticizing Ms. [REDACTED]’s other

22   doctors for doing those things, reaching their own

23   conclusions and recommending their own courses of

24   treatment, are you?

25        A.  No, sir.


1        Q.  You’re not criticizing any of Ms. [REDACTED]’s

2   other doctors for failing to order other tests or

3   other evaluations on Ms. [REDACTED], are you?

4        A.  No, sir.

5        Q.  A patient has a right to rely on her

6   physicians when they make a diagnosis and recommend

7   treatment, is that true?

8        A.  Yes, sir.

9        Q.  In fact, it’s the doctors, not the patient,

10   who determines what tests or procedures are necessary

11   to make a diagnosis and recommend treatment, is that

12   true?

13        A.  Yes, sir.

14        Q.  And the patient has to rely on the doctors?

15            MR. KEITH:  Objection.

16        A.  May or may not, but that’s generally how it

17   works.


19        Q.  Do you think a patient has a right to rely

20   on her doctors’ diagnoses and recommendations for

21   treatment?

22        A.  Yes, sir.

23        Q.  You’re not critical of Ms. [REDACTED] in this

24   case for relying on her doctors’ diagnoses and

25   recommendations for treatment, are you?


1        A.  No, I’m not.

2        Q.  You’re not suggesting that Ms. [REDACTED]

3   should have sought third, fourth or fifth opinions

4   before pursuing the courses of treatment that her

5   doctors recommended, is that true?

6            MR. KEITH:  Object to form.

7        A.  I’m not recommending that, no.


9        Q.  Would you agree that throughout this

10   process, Ms. [REDACTED] has been a cooperative patient?

11        A.  I don’t know.  I only knew her for about 50

12   minutes.  She was fairly cooperative with me.

13        Q.  That’s a good point.  Let me rephrase it.

14            Do you have any reason to think that in

15   pursuing treatment following this motor vehicle

16   accident that Ms. [REDACTED] has been anything other

17   than a cooperative patient?

18        A.  I have no way of knowing.

19        Q.  Do you have any opinion that she has, for

20   instance, failed to go to her follow-up appointments

21   like she should have?

22        A.  I have no way of knowing.

23        Q.  And you don’t have any way of knowing

24   whether she has adequately pursued the courses of

25   treatment recommended by her doctors, is that true?


1        A.  True.

2        Q.  You’re not critical of Ms. [REDACTED], are

3   you, for attending follow-up appointments or pursuing

4   the courses of treatment prescribed by her doctors,

5   are you?

6        A.  No, I’m not.

7        Q.  Do you think that Ms. [REDACTED] has been

8   lying about her symptoms?

9            MR. KEITH:  Object to the form.

10        A.  I haven’t formed my final opinion on that.


12        Q.  What would you need to do to form your

13   final opinion on that?

14        A.  I’m not quite sure, sir.

15        Q.  Is it fair to say that as we sit here

16   today, you don’t know whether Ms. [REDACTED] has been

17   lying to her doctors?

18        A.  Her other doctors or to me?

19        Q.  To her doctors or to you?  To anyone that

20   you know of?

21        A.  I have no idea if she’s lied to her other

22   doctor.  There was one instance, though, I believe

23   she was untruthful with me.  If you’d like, I can

24   tell you what it was.

25        Q.  Please do.


1        A.  When we began the history portion of the

2   IME and I asked her to tell me what happened on the

3   day of her accident, she told me that she was — if

4   you’ll allow me, I can —

5        Q.  Sure.  Are you looking for your IME report?

6        A.  Yes, sir.

7        Q.  Let me get you a copy.  I think I’ve got

8   one that’s not part of such a big file.  I was going

9   to mark it anyway.  Let’s take a break and get this

10   done.

11            (Exhibit 6 marked.)


13        Q.  Have I now marked as Plaintiff’s Exhibit 6

14   your IME report?

15        A.  Yes, sir.

16        Q.  You were going to tell me about, I think

17   about a box and a refrigerator or a freezer?

18        A.  That is correct.  The way this began was I

19   asked her what happened on 9/21/2010.  She said that

20   she was the operator of an SUV, was driving on State

21   Route 400 and had a collision.  And I asked her what

22   she collided with and she said a box floating in the

23   air.  She said it was about ten feet long and five

24   feet wide.

25            I asked her multiple times what the box was


1   and she just said it was a box, just over and over

2   again.  She said she couldn’t tell me anything more

3   than it was a box.

4            I knew from having looked at the medical

5   records that it was a refrigerator and when I looked

6   at the medical records in more detail, she told the

7   emergency room physician, or at least this is what

8   the emergency room physician documents, that it was a

9   refrigerator.

10            I even asked her if you didn’t know what it

11   was at the time, has somebody, anybody told you

12   subsequently between then and now what the box was

13   and she said no.  I just don’t believe that.  I

14   believe she knows it was a refrigerator and just

15   refused to tell me.

16        Q.  Do you have any reason to believe that

17   Ms. [REDACTED] was untruthful with you as to anything

18   except the box-refrigerator issue that you described

19   in your report and orally just a few seconds ago?

20        A.  Nothing that comes immediately to mind,

21   sir, no.

22        Q.  If it does, let me know, please.

23        A.  Will do.

24        Q.  As to the refrigerator, can you think of a

25   reason that Ms. [REDACTED] might be trying to conceal


1   the contents of the box that struck her vehicle?

2        A.  No, I can’t.

3        Q.  Do you think it’s possible she was trying

4   to avoid telling you something that her lawyers had

5   told her?

6            MR. KEITH:  Object to the form.


8        Q.  That she may have believed was privileged?

9        A.  I have no way of knowing that.

10        Q.  Would it matter to you if she had

11   identified the object as, I believe it was a freezer

12   in her deposition when she was being questioned by

13   defense counsel?

14        A.  I think it would have furthered my

15   suspicions if that deposition took place before my

16   IME.  It would have just been all the more proof, so

17   to speak, that she knew what it was.

18        Q.  What significance do you attach to

19   Ms. [REDACTED] not telling you that the box contained a

20   freezer or refrigerator?

21        A.  When somebody only tells you a half truth

22   the very first question you ask them, you wonder what

23   else they’re hiding, what else they’re not going to

24   be truthful about.

25        Q.  Do you think it’s possible that she


1   believed you were asking for an impression from the

2   perspective of the moment when the box appeared on

3   her windshield?

4            MR. KEITH:  Object to form.

5        A.  No.  I was very clear.  I even asked her

6   subsequent to that has anyone told you what it was.

7   I was very clear about that.  And she said no.


9        Q.  In terms of talking with her other doctors

10   as reflected in the medical records, do you have any

11   reason to think that Ms. [REDACTED] was untruthful in

12   describing her symptoms to those doctors?

13        A.  No, I have no evidence of that.  In fact,

14   it appears from the 9/24/2010 emergency room record

15   that she actually did tell them what was in the box.

16        Q.  And when I ask that question, I’m not

17   referring just to the box, but in general I’d like to

18   know if you have any evidence to suggest that

19   Ms. [REDACTED] was lying to other doctors who provided

20   treatment as reflected in the medical records that

21   you reviewed?

22        A.  No, sir, I have no evidence of that.

23        Q.  And you’re not saying that the other

24   doctors inaccurately wrote down what Ms. [REDACTED] told

25   them, are you?


1        A.  No, sir.

2        Q.  If someone were to say that excitement or

3   anxiety from a traumatic event could mask symptoms of

4   injury, would you agree with that?

5        A.  I think before I could agree with something

6   so general I’d like it to have a little flesh.

7        Q.  Would you agree or disagree with the

8   proposition that excitement from a traumatic event

9   such as a motor vehicle accident could mask the

10   symptoms of something like a neck injury, shoulder

11   injury or concussion?

12        A.  Neck injury, sure.  Shoulder injury, sure.

13   Especially if there were other injuries that sort of

14   took precedence over it.  As far as a concussion

15   goes, if a concussion is serious enough, it affects

16   the very way that you communicate and view the world

17   and interact.  It’s sort of a conundrum, you see.  If

18   that was all affected, it couldn’t possibly not be

19   affected and then be affected later on.  I don’t know

20   if that’s clear or not.

21        Q.  I think I understand what you’re saying.

22   I’ll circle around and come back to it.  Are the

23   symptoms of a concussion always evident immediately

24   after a concussion?

25        A.  No, sir.


1        Q.  I’ll leave that alone then for right now.

2   We’ll come back to it.

3            Is it possible for the excitement from a

4   motor vehicle accident to mask the symptoms of a neck

5   injury or shoulder injury?

6        A.  Yes, sir.

7        Q.  If someone said that drugs such as Valium

8   could mask the symptoms of neck or shoulder injury,

9   would you agree with that?

10        A.  Yes, sir.

11        Q.  If someone said that drugs such as Valium

12   could mask the symptoms of a concussion, would you

13   agree with that?

14        A.  I think so. I think I could see a way where

15   that would happen.

16        Q.  All right.  Let’s move on to your IME

17   report and its actual contents.  I wanted to start on

18   page 13.  We’ve already addressed some of this.

19   Actually, I believe it was on page 12 you said that

20   Ms. [REDACTED] had an oddly childish manner.  Could you

21   describe what you mean by that?

22        A.  She was very simplistic in her speaking,

23   chose very simple words, yet understood even very

24   complex ideas and sentences.  It’s been my

25   experience, sir, having done this a long time, that


1   when people do that, they’re generally trying to

2   convince you that they’ve been head injured.  They do

3   things, other things, too, sometimes, but that is a

4   main one.  Others I’ve seen are triplet stuttering,

5   rocking, those types of things.  But the use of very

6   simple terminology despite being able to understand

7   normal spoken sentences from a professional is just a

8   discordant thing that doesn’t go unnoticed.

9        Q.  Is it your opinion that Ms. [REDACTED] was,

10   when she met with you, was deliberately using simple

11   words in order to convince you she had sustained a

12   head injury?

13        A.  I don’t know if it was deliberate or not

14   and I alluded to that in my IME, which I’m sure we’ll

15   get to.

16        Q.  Tell me about that now.  What part of your

17   IME report are you referring to?

18        A.  On page 13, the very last paragraph.

19        Q.  I see.

20        A.  I’ll read it into the record if you’d like.

21        Q.  Well, it’s already in the record because we

22   marked your report as an exhibit.  I will circle back

23   to that.  I wanted to make sure it wasn’t something I

24   was going to miss.

25            So in terms of her childish manner, the


1   question is, I asked you to explain why you thought

2   she had a childish manner and you said she was using

3   simple words.  Is there anything else that

4   contributed to her childish manner in your view?

5        A.  Nothing that I can readily verbalize, sir.

6        Q.  If something comes to mind, let me know.

7        A.  Will do.

8        Q.  Do you believe that Ms. [REDACTED] sustained a

9   concussion?

10        A.  No, sir.

11        Q.  In fact, you saw no evidence whatsoever of

12   any type of traumatic brain injury or concussion, is

13   that right?

14        A.  Correct.

15        Q.  You saw no evidence of any type of

16   postconcussion syndrome?

17        A.  That’s correct.

18        Q.  Is it true that the unremarkable MRI of the

19   brain by itself doesn’t rule out a concussion?

20        A.  It is true it does not rule out a

21   concussion.

22        Q.  Does your medical background allow you to

23   make judgments to a reasonable degree of medical

24   probability as to whether a given symptom or

25   diagnosis was caused by a motor vehicle accident?


1            MR. KEITH:  Let me object to the form of

2   that question.  You can answer it if you can.

3        A.  You can only make that determination based

4   upon the history.  Obviously you can only say

5   something is due to a motor vehicle accident if there

6   was in fact a motor vehicle accident.


8        Q.  I see.  So in order to determine whether a

9   given symptom or diagnosis was caused by a motor

10   vehicle accident, you have to either have reviewed

11   the medical records or evaluated the patient, is that

12   fair?

13        A.  Additionally, you have to have some clear

14   idea that there was a motor vehicle accident.

15        Q.  So in order to know whether a given symptom

16   or diagnosis was caused by a motor vehicle accident,

17   you have to either examine the patient or review the

18   medical records and you must know whether there was a

19   motor vehicle accident, is that true?

20        A.  Correct.

21        Q.  In this case, I take it that your position

22   is that your background as a medical doctor is

23   sufficient when combined with your review of the

24   record and examination of the patient to allow you to

25   determine whether Ms. [REDACTED] sustained a concussion


1   in the wreck that we’re here about, is that true?

2        A.  Yes, sir.

3        Q.  In order to determine whether Ms. [REDACTED]

4   suffered a concussion in this wreck you would need to

5   either review the records or evaluate Ms. [REDACTED], is

6   that true?

7        A.  Yes, sir.  Ideally both.

8        Q.  And you did it both here?

9        A.  Correct.

10        Q.  What do you rely on in reaching your

11   conclusion that Ms. [REDACTED] did not suffer a

12   concussion in this wreck?

13        A.  Concussion, sir, is a diagnosis made by

14   pattern recognition.  If you’ve seen it a number of

15   times in all of its variations, you quickly get a

16   feel for it.  As you pointed out, MRI doesn’t help

17   you.  There are a lot of other tests that don’t help

18   you either.  Not only the symptoms, which is the

19   history, and the lack of findings like, for instance,

20   the normal MRI, but also the course that it takes.

21            For instance, if somebody has progressively

22   worsening and worsening and worsening symptoms, it

23   just can’t be due to a concussion.  That isn’t what

24   concussions do.  So by pattern recognition, training

25   and experience in other words, is how you make those


1   determinations.

2            MR. BUTLER:  Let’s take a quick break.

3            (Recess 2:37 to 2:38.)


5        Q.  We’re back on the record.  During our water

6   break we received your billing records in the case,

7   is that right?

8        A.  Yes, sir.

9            (Exhibit 7 marked.)


11        Q.  Have I now marked them as Plaintiff’s

12   Exhibit 7?

13        A.  Yes, you have.

14        Q.  Do you have any hourly billing records in

15   this case?

16        A.  No, sir.

17        Q.  Are you going to bill anyone for the time

18   you spent preparing for this deposition?

19        A.  No, sir.

20        Q.  Are you going to bill me for the

21   deposition?

22        A.  You betcha.

23        Q.  Are you billing the defense lawyers

24   anything at all other than the $1,800 recorded in

25   Plaintiff’s Exhibit 7?


1        A.  As of now, sir, no.

2        Q.  If we go further in this case will you bill

3   them?

4        A.  If they ask me to do more work, then yes.

5        Q.  I’ll get into your hourly rates and stuff

6   later.  I was asking what you relied on to reach your

7   conclusion that Ms. [REDACTED] had not sustained a

8   concussion in this wreck and you had said training

9   and experience, I think, is that right?

10        A.  Correct.  Pattern recognition, in other

11   words.

12        Q.  We’ll put in parentheses pattern

13   recognition.  You’ve also relied, obviously, on your

14   examination of Ms. [REDACTED]?

15        A.  Correct.

16        Q.  And you’ve relied on your review of the

17   medical records?

18        A.  Yes, sir.

19        Q.  Anything else?

20        A.  No, sir.

21            (Exhibit 8 marked.)


23        Q.  I’ve made a list of the things you’ve

24   relied upon on notebook paper, highly technical, and

25   marked it as Plaintiff’s 8, is that true?


1        A.  Yes, sir.

2        Q.  What is a diffuse axonal injury?

3        A.  Diffuse axonal injury is a concept that has

4   been put forth to explain what happens in head

5   injury.  The brain consists of a number of billion

6   cells and they have a cell body and then they have a

7   big, long projection coming from them called an axon.

8   At the end of that axon there’s a little terminal

9   that can communicate with the next neuron in the

10   chain.

11            It has been put forth that one of the

12   things that happens in a head injury is that there is

13   — something happens to the axons.  Some people think

14   that the axons shear.  Others think that they swell

15   and in that swelling, the transport of chemicals

16   along the axon is interrupted.  That’s basically what

17   diffuse axonal injury means.  It can be either of

18   those things.

19        Q.  You said a few times it has been put forth.

20   In your view are diffuse axonal injuries real?  Does

21   that really happen?

22        A.  Sure it did.

23        Q.  Could it have happened here?

24        A.  No, I don’t think it did, sir.

25        Q.  Is it your opinion to a reasonable degree


1   of medical probability that there was no diffuse

2   axonal injury in this case?

3        A.  Yes, sir.

4        Q.  Is it possible that the back of

5   Ms. [REDACTED]’s head struck the headrest of her car in

6   this wreck?

7        A.  Sure it’s possible.

8        Q.  Do you know what time of day this wreck

9   occurred?

10        A.  No, sir.

11        Q.  Your IME report on page 13 says it is

12   simply not possible for dysphasia to come on a day or

13   two after a minor traumatic brain injury without a

14   subsequent pathological process to explain it, is

15   that right?

16        A.  Yes, sir.

17        Q.  What’s your basis for that conclusion?

18        A.  It’s simple medicine.  Simple neurology.

19   You see, if you have a speech disorder, it means that

20   something has happened to some area of the brain.  It

21   could be the language generating area or it could be

22   the areas that control the muscles that actually

23   phonate by moving your vocal cords, et cetera; but I

24   can’t think of any process by which you can injure

25   the brain and then, absent anything else going on,


1   hours later those areas suddenly dysfunction.

2            I can think of ways where there can be a

3   subsequent pathological process, for instance,

4   somebody has an injury, they’re shaken up, the next

5   day they go to the doctor, they take a Valium, they

6   start slurring their speech, aha, it was the Valium.

7   Or somebody has a serious injury and over the course

8   of the next day they develop swelling, cerebral

9   edema, but that isn’t what happened.  Or that they

10   develop a hemorrhage that isn’t apparent on the

11   initial CT scan in the emergency room, and we see

12   this all the time, and then subsequently that

13   hemorrhage is apparent, but in those cases there has

14   to be some subsequent thing to happen.

15        Q.  You mentioned swelling and cerebral edema

16   and I think I’ve heard that your opinion was in this

17   case that there was no swelling of the brain or

18   cerebral edema?

19        A.  Correct.

20        Q.  Why did you reach that conclusion?

21        A.  Those things are rather easily seen on

22   imaging studies.

23        Q.  So when the brain swells, it should show up

24   on what kind of study?

25        A.  CT or MRI, either one.


1        Q.  And is there any medical textbook that you

2   consider authoritative on the subject of whether

3   dysphasia can occur a day or two after a traumatic

4   brain injury?

5        A.  Not that I know of, sir.

6        Q.  Is there any study that you can cite that

7   explains the things you just told me?

8        A.  No, sir.

9        Q.  I think you describe it as simple medicine.

10   From what sort of authoritative source does that

11   simple medicine come?

12        A.  Training and experience.  I’m a neurologist

13   and I’m trained to know how the central and

14   peripheral nervous systems function and how they

15   dysfunction, how pathological processes affect them.

16        Q.  What specific training are you referring

17   to?

18        A.  I did a residency for three years and I

19   have practiced neurology for 13 years.

20        Q.  Is there any book, periodical or study that

21   you can cite in support of the conclusion that it’s

22   not possible for the symptoms of a concussion to come

23   on a day or two after the traumatic brain injury?

24        A.  That isn’t the question you asked, sir.

25        Q.  Okay.  Tell me what I messed up on.


1        A.  By using the word “symptoms,”

2   you generalize —

3        Q.  I should stick to dysphasia?

4        A.  Yes.

5        Q.  What is dysphasia?

6        A.  It’s a speech disorder.

7        Q.  Is there any periodical, study or text that

8   you can point me to in support of the conclusion that

9   dysphasia cannot come on a day or two after a

10   traumatic brain injury?

11        A.  No, sir, nothing that I can think of.

12        Q.  Is there any subsequent pathological

13   process that you can think of at issue in this case?

14        A.  No, sir.

15        Q.  And by that we mean that you don’t know of

16   any possible cause for Ms. [REDACTED]’s reported

17   symptoms other than the motor vehicle accident that

18   we’re here about, is that true?

19            MR. KEITH:  Object to the form.

20        A.  Not exactly.


22        Q.  Tell me why not.

23        A.  After reading the medical record and very

24   carefully considering it, one of my opinions, sir, is

25   that some of these symptoms may have been suggested


1   to her.  Some people are more suggestible than

2   others.  And [REDACTED] was accompanied by a woman who I

3   believe was a nurse who worked in a brain injury unit

4   and I think the best explanation, only because there

5   aren’t any others, is that these symptoms may have

6   been suggested by this individual.  I actually think

7   that’s more believable than she made them up

8   completely and maliciously.

9        Q.  So is it your conclusion that someone

10   suggested to Ms. [REDACTED] that she had dysphasia?

11        A.  I think it’s probably the best explanation

12   that I can think of, sir.

13        Q.  Could you testify that to a reasonable

14   degree of medical probability someone suggested to

15   Ms. [REDACTED] that she had dysphasia?

16        A.  Yes, but not in those exact words.  What I

17   could say is that I believe the presence of this

18   other individual acted as a force of suggestion and

19   that that is the best explanation I can come up with

20   for why she had these symptoms because I can think of

21   no subsequent pathologic process that did it.

22        Q.  So is it or is it not your opinion to a

23   reasonable degree of medical probability that someone

24   else suggested to Ms. [REDACTED] that she had dysphasia?

25        A.  Yes, it is.


1        Q.  It is, okay.  And you said your basis for

2   that opinion is — I better just ask you.  What is

3   your basis for the opinion that someone else

4   suggested to Ms. [REDACTED] that she had dysphasia?

5        A.  A couple of things.  First of all, there is

6   no better explanation.  There is no subsequent

7   pathological process that I can identify.  Second of

8   all, in 15 years of practicing — 14 years, something

9   like that, I’ve noticed that people can sometimes

10   fall to the power of suggestion when they’re with

11   medical professionals.  They behave differently

12   around them through no volitional act of their own

13   and that the interaction between a person and a

14   medical professional can sometimes influence their

15   symptoms and the course of an illness.

16            This is particularly true when you see a

17   patient who comes from a family full of doctors and

18   it’s especially true when those doctors don’t come to

19   the appointment, but the person says and does things

20   that leads you to believe that they’ve been listening

21   to other people and those people have weighed in.

22        Q.  The opinion we’re talking about now is that

23   someone suggested — your opinion, succinctly

24   phrased, is the reason Ms. [REDACTED] displayed

25   dysphasia is because someone suggested it to her, is


1   that right?

2        A.  Yes, sir.  But I would caution you again to

3   thinking it was that simple.  I’m not implying

4   someone said to her go in there and slur your speech.

5   That’s not what I’m saying.  What I’m saying is that

6   this person who is a nurse from a brain injury ward

7   or something like that most likely latched on to

8   something, and I could just tell you in my experience

9   with medical professionals these things can happen.

10   Symptoms can simply blow up out of proportion.  And,

11   once again, as I’ve said before, I don’t think this

12   was volitional.

13        Q.  And the person you’re talking about, I

14   think, is LuRae [REDACTED], is that right, or do you

15   know?

16        A.  I don’t think I know the individual’s name.

17   I can look and see if I’ve documented it.

18        Q.  I don’t recall it from the report.

19        A.  Patient’s friend who is a retired ICU nurse

20   with specialty in brain injuries.  That was taken

21   directly from the emergency room physician.

22        Q.  ICU nurse.  So you think that the ICU nurse

23   may have suggested indirectly rather than directly,

24   is that fair?

25        A.  Yes, sir.


1        Q.  So in your opinion, the reason [REDACTED] had

2   dysphasia was because the ICU nurse suggested it to

3   her indirectly?

4        A.  Correct.

5        Q.  Have you ever spoken with this ICU nurse

6   that we’ve talked about?

7        A.  I have not.

8        Q.  Did [REDACTED] say anything to you during your

9   meeting with her to indicate that the idea for

10   dysphasia came from this ICU nurse?

11        A.  She didn’t.  My guess is she wouldn’t

12   realize it.

13        Q.  Have you ever met this ICU nurse before?

14        A.  No.

15        Q.  What other alternatives did you exclude

16   before coming to the conclusion that the reason

17   Ms. [REDACTED] had dysphasia was because the ICU nurse

18   indirectly suggested it to her?

19        A.  Hemorrhage, hydrocephalus, stroke, foreign

20   body.  Those things are all excluded.

21        Q.  Is there any medical study or text that you

22   can point to in support of your conclusion that the

23   reason Ms. [REDACTED] had dysphasia was because the ICU

24   nurse indirectly suggested it to her?

25            MR. KEITH:  Object to form of that


1   question.

2        A.  No, sir.  I don’t think anything is written

3   about that specific of a situation.


5        Q.  Do you know of any peer reviewed articles

6   that would support your conclusion that the reason

7   [REDACTED] had dysphasia was because the ICU nurse

8   indirectly suggested it to her?

9        A.  No, sir.

10        Q.  Do you believe that any of [REDACTED]’s other

11   symptoms are attributable to suggestion from the ICU

12   nurse?

13        A.  Yes, sir.

14        Q.  Which ones?

15        A.  Her very slow, shuffling gait.  In fact,

16   the emergency room physician said patient was very

17   slow, shuffling gait, patient feels unsteady but

18   isn’t visibly unsteady.

19        Q.  So we have the gait, the dysphasia.

20   Dysphasia is speech, right?

21        A.  Yes, sir.

22        Q.  Any other symptoms that you believe were

23   caused by the indirect suggestion of the ICU nurse?

24        A.  No, sir.

25        Q.  How soon after this wreck did Ms. [REDACTED]’s


1   dysphasia begin, to the best of your knowledge?

2        A.  Somewhere prior to 9/24/2010.  It’s

3   recorded as having been waxing and waning, but today

4   was by far the worst, implying that it had to have

5   been going on at least yesterday.  The day before

6   that appointment would have been the 23rd, which

7   would be two days after the accident.

8        Q.  So is it your opinion, then, that the first

9   time Ms. [REDACTED] displayed dysphasia was on the 23rd,

10   or do you know one way or the other?

11        A.  I can’t be sure, but it was sometime

12   between the 21st and the 23rd.

13        Q.  Do you know when Ms. [REDACTED] first spoke to

14   the ICU nurse following this accident?

15        A.  No, sir, I don’t.  All I know is that she

16   was present with her on the 24th.

17        Q.  On the?

18        A.  24th.

19        Q.  Do you know when after this wreck

20   Ms. [REDACTED]’s slow, shuffling gait first appeared?

21        A.  No, sir.  That isn’t specifically

22   referenced.

23        Q.  As to the appearance of dysphasia, you

24   don’t have any knowledge as to whether it appeared

25   first at any specific time other than it was before


1   that medical record was made on the 24th, is that

2   right?

3        A.  That’s correct.

4        Q.  How would you characterize Ms. [REDACTED]’s

5   dysphasia?

6        A.  Well, she didn’t have any when I saw her.

7        Q.  Describe for us, please, in as best detail

8   as you can, what Ms. [REDACTED]’s dysphasia was like.

9        A.  By this record she didn’t actually have it.

10   She had dysarthria.

11        Q.  What is dysarthria?

12        A.  Dysarthria is slurred speech.  Dysphasia is

13   actually coming up with incorrect words or incorrect

14   syntactical word order.  Dysarthria is a phonation

15   problem.  Dysphasia is a language problem.  They

16   invoke very different areas of the brain.

17        Q.  Dysarthria is a — you just used a couple

18   words and they slipped my mind already.

19        A.  Is a phonation problem.  The actual

20   formation of the sounds, but language is intact.

21        Q.  And dysphasia was?

22        A.  Dysphasia is a language disorder meaning

23   words are, syntax are improper but pronunciation may

24   be normal.

25        Q.  Now in terms of, I think I asked you when


1   the — when did Ms. [REDACTED] exhibit dysphasia?

2        A.  Well, she alleges that she exhibited it on

3   or before the 23rd of September, but it isn’t

4   recorded by any physician.

5        Q.  And the dysphasia you believe was caused by

6   the indirect suggestion of the ICU nurse, is that

7   true?

8            MR. KEITH:  Object to form.

9        A.  Correct.


11        Q.  And when did the dysarthria first appear,

12   or do you believe that she ever had dysarthria at

13   all?

14        A.  I believe that she had very — that she was

15   very slightly dysarthric, that’s per the reading of

16   the ER report.

17        Q.  Do you believe that the dysarthria was

18   caused by the indirect suggestion of the ICU nurse?

19        A.  I have no idea what caused the dysarthria.

20        Q.  Do you believe it’s possible that the

21   dysarthria was caused by brain injury?

22        A.  No, sir.

23        Q.  Why not?

24        A.  It doesn’t cause dysarthria.

25        Q.  On what do you base your conclusion that


1   brain injuries don’t cause dysarthria?

2        A.  Dysarthria is caused by more widespread

3   dysfunction of the brain.  For instance, if you drink

4   too much alcohol and alcohol pervades your brain or

5   if you take a couple of Valium tablets, you could be

6   very dysarthric or mildly or even slightly.  If

7   you’re overtired, you can be dysarthric.  Chances are

8   you’d be slightly dysarthric.

9            The other way that you can get dysarthria

10   is by direct injury to the brainstem itself, but in

11   order to have dysarthria from a brainstem injury

12   you’d have far worse problems, what we call long

13   tract signs.  Certainly wouldn’t be able to walk,

14   might not be able to align your eyes.  A lot of other

15   things.  See, dysarthria isn’t very localized.

16        Q.  I don’t know that we ever answered this

17   question.  Describe for me, if you will, as best

18   you’re able, what Ms. [REDACTED]’s dysphasia was like.

19        A.  To be very clear, she, meaning Ms. [REDACTED],

20   never said she was dysphasic.  The emergency room

21   doctor never documented dysphasia.  It was alleged by

22   the nurse.

23        Q.  By which nurse?

24        A.  The ICU nurse who is a friend of

25   Ms. [REDACTED].  That’s according to the record.


1        Q.  I see.

2        A.  To be clear, it says:  Patient’s friend who

3   is a retired ICU R.N. with specialty in brain

4   injuries states patient has been having some waxing

5   and waning speech problems, difficulty walking.

6   Today was by far the worst with some expressive

7   dysphasia.

8        Q.  What do you believe caused Ms. [REDACTED]’s

9   slow, shuffling gait?

10        A.  I think that was the power of suggestion.

11        Q.  Do you believe that that suggestion also

12   came from the ICU nurse?

13        A.  I do.  If I may add to that, sometimes

14   people who feel ill act ill.  We all hold our

15   stomachs when we have stomach pain, but that doesn’t

16   really help.  These are just human behaviors.  The

17   important thing is whether they persist or not.

18            As far as the shuffling gait, though,

19   that’s generally not something that you would see

20   just because somebody didn’t feel well.  So I think

21   that may have been something that this ICU nurse was

22   looking for, may have latched onto and then, lo and

23   behold, it appears.

24        Q.  I need to ask you the same set of questions

25   then with regard to the slow, shuffling gait.  So the


1   question is, when, to the best of your knowledge, did

2   Ms. [REDACTED]’s slow, shuffling gait first appear?

3        A.  I don’t know.  That is not specified.

4        Q.  Describe, please, in as great a detail as

5   you can what Ms. [REDACTED]’s slow, shuffling gait

6   looked like.

7        A.  I have no idea what her slow, shuffling

8   gait looked like.

9        Q.  Do you know of any specific conversation in

10   which the slow, shuffling gait could have been

11   suggested to Ms. [REDACTED]?

12        A.  No, sir.

13        Q.  Can you cite any medical text, periodical

14   or peer reviewed journal or any medical document in

15   support of your opinion that the slow, shuffling gait

16   was caused by the indirect suggestion of the ICU

17   nurse?

18        A.  No, sir.

19        Q.  Other than your opinion that there is no

20   other known cause for the slow, shuffling gait, what

21   basis do you have for the opinion that the slow,

22   shuffling gait was caused by the indirect suggestion

23   of the ICU nurse, or is it only that, the exclusion

24   of other causes?

25        A.  The exclusion of other causes, the fact


1   that it went away.

2        Q.  Do you think that Ms. [REDACTED] was faking

3   her slow, shuffling gait?

4        A.  No, sir.

5        Q.  Do you think she was faking her speech

6   difficulties?

7        A.  No, sir.

8        Q.  Do you think other witnesses who believed

9   Ms. [REDACTED] was having difficulty with her speech

10   were somehow fooled by Ms. [REDACTED] or by someone

11   else?

12            MR. KEITH:  Object to form.

13        A.  No.  In fact, I think they weren’t.


15        Q.  Do you think other witnesses — did I just

16   ask the gait or the speech?

17        A.  You asked speech.  And by witnesses, I’m

18   referring — I should be clear, I’m referring to the

19   emergency room physician.  That’s the only witness to

20   this encounter that I have documentation of.

21        Q.  I should ask that then.  What documentation

22   do you have of difficulty with Ms. [REDACTED]’s gait?

23   Strike that.  You don’t need to go through all that.

24   It takes too much time.

25            Do you think that the other witnesses were


1   fooled by Ms. [REDACTED] with respect to her gait?

2        A.  I have no idea.

3        Q.  On page 13 of your report there’s the

4   bottom paragraph that you started to allude to

5   earlier.  In that paragraph you said it was your

6   opinion that there were one of three causes for

7   Ms. [REDACTED]’s symptoms, is that right?

8        A.  Yes, sir.

9        Q.  Those three causes were malingering,

10   conversion, or highly suggestible personality type,

11   is that right?

12        A.  Correct.

13        Q.  Do you think Ms. [REDACTED] is malingering?

14        A.  No, sir.

15        Q.  Why not?

16        A.  Malingerers generally tend not to admit

17   that they have gotten better, and she admits that

18   she’s gotten significantly better.

19        Q.  Does her employment status have anything to

20   do with your conclusions about malingering?

21        A.  I don’t recall if I had taken that into

22   consideration, but now that you mention it, yes.

23        Q.  It’s in that last paragraph we were just

24   looking at.

25        A.  Okay.


1        Q.  You have psychopathology, parentheses,

2   conversion.  What does that mean?

3        A.  Conversion is a psychological phenomenon in

4   which a person displays some bodily dysfunction that

5   doesn’t have a true pathological basis, but their

6   subconscious has willed it.  It generally occurs in

7   people who have suffered severe psychological trauma,

8   that have been raped or beaten, molested as children.

9   Those are generally the ones who come up with that.

10        Q.  Do you think that’s what’s happening with

11   Ms. [REDACTED]?

12        A.  No, I don’t think so.  I actually think

13   that the power of suggestion is a better explanation.

14        Q.  And is that the third option that we

15   outlined earlier in the bottom paragraph of page 13

16   of your IME report?

17        A.  Yes, sir.

18        Q.  And just to clear that up, you don’t think

19   the psychopathology parenthetically conversion is

20   what’s occurring here, is that true?

21        A.  Yes.  The reason is I don’t have any

22   psychological history of her.  I don’t know her to

23   have been abused or to have a traumatic upbringing or

24   anything like that.

25        Q.  In other words, you would not say that it


1   is probable that Ms. [REDACTED]’s problem is related to

2   psychopathology or conversion, is that true?

3        A.  Correct, because I don’t have a basis for

4   that.

5        Q.  Highly suggestible personality type, do you

6   think that’s the cause of Ms. [REDACTED]’s symptoms?

7        A.  I do.

8        Q.  On what basis did you conclude that

9   Ms. [REDACTED] has a highly suggestible personality

10   type?

11        A.  It has to do with the way she presented

12   herself.  The slow, halting speech.  It has to do

13   with the initial encounter in the emergency room

14   where she was obviously shaken up but did not have a

15   pathological explanation for her behavior.  Things

16   like that.

17        Q.  I’ve got, in terms of the reasons you

18   believe she has a highly suggestible personality

19   type, I have slow, halting speech in her meeting with

20   you or in the medical records?

21        A.  In the medical records.  And the

22   oversimplified language that she used with me.

23        Q.  We’ll make another one of these lists.

24   Oversimplified language with you in the IME, I

25   presume?


1        A.  Yes, sir.

2        Q.  And then slow, halting speech in the

3   medical records?

4        A.  Correct.

5        Q.  And then she was shaken with no

6   pathological explanation?

7        A.  No, sir.  She was shaken when she was in

8   the emergency room, sure, that she was affected by

9   the fact that she was in a motor vehicle crash.

10   Having been in one myself, I know that happens, but

11   the behavior that she displayed in the emergency room

12   on 9/24 turned out to have no pathological basis.

13        Q.  Behavior in ER had no pathological basis?

14        A.  Correct.  We spoke about a subsequent

15   pathological process and there just wasn’t one.

16        Q.  Pathologic or pathological?

17        A.  Very good question.  I think either is

18   acceptable.

19        Q.  Fewer letters is more better.

20            So the reasons to believe that Ms. [REDACTED]

21   has a highly suggestible personality type are her

22   oversimplified language in her IME with you, her

23   slow, halting speech in her medical records, and her

24   behavior in the ER having no pathological

25   explanation?


1        A.  Correct.

2        Q.  Is that right?

3        A.  Yes, sir.

4        Q.  Am I leaving anything out?

5        A.  Not that I can think of right now.

6        Q.  If you think of something, can you let me

7   know?

8        A.  Yes, sir.

9        Q.  Have I now marked all the reasons we went

10   over?

11        A.  Yes, sir.

12        Q.  I’ll hand it to Mr. Keith for his

13   examination.

14            (Exhibit 9 marked.)


16        Q.  Do you believe that the person doing the

17   suggesting in this case is the ICU nurse who

18   accompanied Ms. [REDACTED] to the hospital?

19        A.  I think that’s highly likely.

20        Q.  Do you know who it is?

21        A.  By name?

22        Q.  No.  You just said it’s highly likely.  Do

23   you think it could be someone else, or do you know

24   one way or the other?

25        A.  I have no evidence to suggest that it was


1   someone else.

2        Q.  What evidence do you have to suggest that

3   it was the ICU nurse that accompanied Ms. [REDACTED] to

4   the hospital other than the fact that she accompanied

5   Ms. [REDACTED] to the hospital?

6        A.  Having seen this before, seeing the way

7   people interact, seeing the way patients act when

8   they’ve been around medical professionals, you learn

9   these things over the years, sir.

10        Q.  Is there anyone other than the ICU nurse

11   who accompanied Ms. [REDACTED] to the hospital that you

12   think might be doing the suggesting that causes

13   Ms. [REDACTED]’s symptoms in this case?

14        A.  Not that I know of.

15        Q.  Is the highly suggestible personality type,

16   is that what you would call a functional cognitive

17   disorder?

18        A.  No, sir.

19        Q.  Do you believe that there is a functional

20   cognitive disorder in this case?

21        A.  No, sir.  If I take functional cognitive

22   disorder to mean one that is verified and validated.

23        Q.  What does verified and validated mean?

24        A.  Well, there are ways of evaluating

25   cognitive disorders.


1        Q.  I guess maybe the easier way to ask it is

2   this:  Do you have any basis to testify in this case

3   that, to a reasonable degree of medical probability,

4   there is a functional cognitive disorder involved?

5        A.  My belief is that there is not.

6        Q.  You believe there is not a functional

7   cognitive disorder involved?

8        A.  There is not.

9        Q.  I see.

10        A.  In that, I should clarify, I’m taking the

11   adjective “functional” to mean legitimate,

12   verifiable, et cetera.  Sometimes as neurologists we

13   use the word functional to describe something that is

14   factitious and not real.  Like functional visual loss

15   is someone who has no basis for visual loss but

16   simply says they can’t see.  So if I can restate —

17        Q.  You bet.

18        A.  I believe she does not have cognitive loss.

19        Q.  I see.

20        A.  I prefer not to use the word functional

21   because it is used in directly opposite ways by

22   neurologists, unfortunately.

23        Q.  In other words, you believe there is no

24   cognitive loss at issue in this case?

25        A.  That’s correct.


1        Q.  And I think I had misinterpreted your

2   report to understand it to mean that you believed a

3   functional cognitive disorder was the cause of

4   Ms. [REDACTED]’s problems, but in reaching that

5   conclusion, I would have been misreading your report,

6   right?

7        A.  Correct.  Could you point me to that?  I’m

8   terrified I’m going to mislead you.

9        Q.  Yes.  Page 15.  Diagnosis number one.

10        A.  Okay.  So in this circumstance I’m using

11   “functional” to mean something that is not

12   verifiable; in other words, that is present but not

13   verifiable, has no basis in actual pathology.

14            And I apologize, sometimes the term

15   “functional” is used in other ways and I probably

16   should have left it out entirely.

17        Q.  So you believe there was no concussion in

18   this case and there is no cognitive disorder in this

19   case?

20        A.  Correct.

21        Q.  Is that right?

22        A.  Yes, sir.

23        Q.  You do believe there was a cervical strain?

24        A.  Yes, sir.

25        Q.  And I think you would agree the cervical


1   strain was caused by the motor vehicle accident, is

2   that true?

3        A.  That’s correct.

4        Q.  So the forces at issue in the motor vehicle

5   accident were at least sufficient to cause that

6   cervical strain?

7        A.  Correct.

8        Q.  In terms of the temporomandibular joint, if

9   it’s all right with you I’ll use TMJ instead of

10   saying temporomandibular joint as we sit here today,

11   is that all right?

12        A.  Yes, sir.

13        Q.  Are you a TMJ expert?

14        A.  No, sir.

15        Q.  Are you going to be offering any opinions

16   to a reasonable degree of medical probability

17   relating to the TMJ point?

18        A.  No, sir.

19        Q.  That will save me a page of questions.

20            Do you know what speed Ms. [REDACTED]’s

21   vehicle was going at the time of the wreck?

22        A.  I do not.

23        Q.  Do you know what speed the freezer was

24   going at the time of the wreck?

25        A.  No, sir.


1        Q.  For purposes of that question, please

2   assume that the box that hit Ms. [REDACTED]’s vehicle

3   contained a freezer.

4        A.  Will do.

5        Q.  Did you calculate the change in velocity of

6   Ms. [REDACTED]’s vehicle as the result of this

7   collision?

8        A.  No, sir.

9        Q.  Did you calculate the change in velocity of

10   Ms. [REDACTED]’s head as a result of this collision?

11        A.  No, sir.

12        Q.  I take it that your position is you don’t

13   need to know the change in velocity of Ms. [REDACTED]’s

14   head or the change in velocity of her vehicle in

15   order to reach a conclusion as to whether this wreck

16   caused a concussion, is that right?

17        A.  That’s correct.

18        Q.  Do you think it’s possible that this wreck

19   aggravated a preexisting TMJ condition?

20        A.  I don’t know.  I don’t have an opinion

21   either way.  I’m not an expert in temporomandibular

22   joint disorders.

23        Q.  You have no opinions relating to the TMJ?

24        A.  That’s correct.

25        Q.  Do you believe that Ms. [REDACTED] has a


1   mental health disorder?

2        A.  I don’t have enough basis to be sure.

3        Q.  In other words, given what you know now,

4   you don’t have enough information to have an opinion

5   one way or the other as to whether Ms. [REDACTED] has a

6   mental health disorder, is that true?

7        A.  Correct, sir.  I can’t be sure.  I think

8   it’s possible.

9        Q.  Do you have an opinion to a reasonable

10   degree of medical probability as to whether

11   Ms. [REDACTED] has a mental health disorder?

12        A.  No.

13        Q.  When you’re trying to find out if a symptom

14   is a result of suggestion, as you believe symptoms to

15   have been in this case, what signs or indicia do you

16   look for to tell you whether the problem is

17   suggestion?

18        A.  I didn’t understand that word you used.

19   Signs or?

20        Q.  Indicia?

21        A.  Indicators?

22        Q.  Yeah, indicators, same thing.

23            MR. KEITH:  Legal indicators, indicia, yes.


25        Q.  Let me ask the question because I probably


1   screwed it up in other ways as well.

2            When you’re considering whether someone’s

3   symptoms are caused by the suggestion of another as

4   you have concluded in this case, what signs or

5   indicators do you look for to reach that conclusion?

6        A.  Well, first and foremost it has to be —

7   there has to be the presence of someone who could

8   have induced this.  In my line of work as a

9   physician, time and time again it’s contact with

10   medical professionals, they can really cause a person

11   to behave differently, or at the very least become

12   extraordinarily anxious about what’s wrong with them.

13   That’s the first thing.

14            The second thing is you see it.  You end up

15   seeing behaviors that are very classic, the slow,

16   halting speech, the careful walk that’s very slow,

17   one foot deliberately planted in front of the other.

18   Those are not things that arrive out of injury at

19   all.  Those are things that arise out of the

20   suggestion of injury.

21        Q.  I wrote down presence of someone who could

22   do the suggesting, the slow, halting speech and the

23   careful walk?

24        A.  Right.  Those are two examples of behaviors

25   that you could observe.  So you’d need some force to


1   do the suggesting and some behaviors that you could

2   observe that are consistent with it.

3        Q.  Can you think of any medical text, peer

4   reviewed journal or any document like that that would

5   give us some of the signs or indicators of suggestion

6   being the source of the problem?

7        A.  No, sir, I can’t.  But I will say that I

8   can’t remember ever reading in any textbook of

9   medicine one single word about patients that I would

10   meet in practice who would embellish or misrepresent

11   their own symptoms, yet I’ve witnessed that from the

12   day I started practice.  And I’m not saying that she

13   did, but there are things they don’t teach you in

14   textbooks that you learn on the job.

15        Q.  So that we’re clear, are you saying that

16   Ms. [REDACTED] embellished or misrepresented her

17   symptoms?

18        A.  I don’t believe she purposefully did either

19   of those.

20        Q.  You used the term maximum medical

21   improvement in your report and I take that paragraph

22   to mean that you believe Ms. [REDACTED]’s improvement is

23   over, is that right?

24        A.  That she’s gotten all the improvement she’s

25   going to get.  It doesn’t necessarily mean


1   normalization.

2        Q.  So you think that Ms. [REDACTED] has gotten

3   all the improvement she’s going to get, although that

4   doesn’t necessarily mean she’s totally normal, is

5   that true?

6        A.  That’s correct.

7        Q.  And then you had a section there called

8   recommendations for further care and you wrote none,

9   is that right?

10        A.  That’s correct.

11        Q.  You don’t think Ms. [REDACTED] should get any

12   further care with respect to this wreck, is that

13   true?

14        A.  It says I wasn’t recommending any further

15   care.

16        Q.  Do you have an opinion as to whether she

17   should receive further care in connection with this

18   care?

19        A.  I do have an opinion.  My opinion is that

20   the type of care that she’s getting may or may not

21   have been responsible for the improvement that she’s

22   had.  There’s no way to know.  She could have

23   improved without any treatment.  But right now it has

24   reached a point in which it’s just no longer doing

25   any good.  It doesn’t mean that all of a sudden you


1   just cease.  There is such a thing as being weaned

2   from medical care.

3        Q.  In your opinion should Ms. [REDACTED] continue

4   to receive medical care or not?

5        A.  Just long enough that she can be weaned

6   from the dependency of the doctor-patient

7   relationship.

8        Q.  So in your opinion, Ms. [REDACTED] should

9   receive medical care just long enough to wean her

10   from the doctor-patient relationship?

11        A.  Correct.  There may be medications that

12   she’s now taking that might need to be slowly

13   discontinued, things like that.  Stopping care

14   abruptly isn’t always a good idea.

15        Q.  Anyway, there’s no further care that you

16   would recommend for Ms. [REDACTED], is that true?

17        A.  Correct.

18        Q.  I wanted to review some symptoms with you

19   and see if you think they were real or whether you

20   agree with them or not.  I understand you do not

21   think she sustained a concussion?

22        A.  That’s correct.  But that’s not a symptom.

23        Q.  Right.  Do you believe that she was dazed

24   at the scene of the wreck?

25        A.  I don’t have any way of knowing.


1        Q.  Do you believe that Ms. [REDACTED] had no

2   memory following seeing the box in her windshield and

3   preceding being parked on the side of the road and

4   somebody patting her arm?

5        A.  I have no way of knowing.

6        Q.  Do you believe that she exhibited a broad

7   based or shuffling gait?

8            MR. KEITH:  When?


10        Q.  At any point?

11        A.  No, sir, but I believe she exhibited a wide

12   based and hesitant gait for Dr. Futrell and a normal

13   gait for me.

14        Q.  So you believe she had a wide based and

15   hesitant gait, true?

16        A.  Correct.

17        Q.  But you don’t think she had a shuffling

18   gait?

19        A.  Correct.

20        Q.  Do you believe she had garbled speech?

21        A.  I’m not so sure that’s a very specific

22   term.

23            MR. KEITH:  Yeah, for that reason let me

24   just object to the form of that question.



1        Q.  I guess another way to put it is you never

2   actually witnessed Ms. [REDACTED]’s speech problems, is

3   that right?

4            MR. KEITH:  Object to the form.

5        A.  That’s correct.


7        Q.  In your opinion did she exhibit speech

8   problems, or do you have an opinion one way or the

9   other?

10        A.  She exhibits a classic speech pattern of

11   the use of simplified terms and earlier in the course

12   of her injury before meeting me of a slow, halting

13   speech.

14        Q.  Do you think she ever exhibited dysarthria?

15        A.  I do.  I think if I can trust the emergency

16   room physician’s notes, that she experienced very

17   slight dysarthria.

18        Q.  Do you think she ever exhibited dysphasia?

19        A.  No, sir.  I have no basis to conclude that.

20        Q.  Do you think that she ever had, past tense,

21   neck pain?

22        A.  Yes.

23        Q.  Do you think she ever had shoulder pain?

24        A.  Yes.

25        Q.  Do you think she ever had headaches as a


1   result of this wreck?

2        A.  I believe she did, but I can’t find it

3   right now.

4        Q.  Do you think she ever had diminished

5   cognition?

6        A.  No.

7        Q.  Do you think she ever experienced a lack of

8   endurance or, in other words, excessive fatigue?

9        A.  I don’t know.

10        Q.  Do you think at present Ms. [REDACTED]

11   experiences neck pain?

12        A.  There’s no way I can know for certain.  She

13   told me she does.

14        Q.  Do you have any reason to disbelieve her?

15        A.  No.

16        Q.  Do you think that Ms. [REDACTED] experiences

17   shoulder pain?

18        A.  I don’t think we spoke specifically about

19   it, but I can look.

20            We didn’t speak specifically of shoulder

21   pain.

22        Q.  Do you think she experiences pain in the

23   area between the neck and shoulder?

24        A.  I don’t know.  Between the neck and

25   shoulder she said she experiences muscle tension.


1   Whether that’s simply a sense of tightness or pain, I

2   don’t think we went into further detail.

3        Q.  So in other words, you don’t know whether

4   she currently experiences pain between her neck and

5   shoulder?

6        A.  Correct.

7        Q.  Do you believe she presently experiences

8   excessive fatigue?

9        A.  I don’t know, sir.

10        Q.  Do you believe she presently experiences

11   thinking and cognitive issues?

12        A.  I don’t know what thinking issues is, but I

13   don’t think she experiences cognitive deficits.

14        Q.  Do you think she currently experiences

15   decreased endurance?

16        A.  I don’t know.

17        Q.  Do you have an opinion to a reasonable

18   degree of medical certainty as to whether Ms. [REDACTED]

19   has returned to her status from before the wreck?

20        A.  I don’t.  I don’t know what she was like

21   before the wreck.

22        Q.  In other words, then, you don’t know

23   whether Ms. [REDACTED] has returned to normal?

24        A.  That’s correct.

25        Q.  That’s because you haven’t talked with


1   anyone who knew Ms. [REDACTED] before the wreck, is that

2   right?

3        A.  Yes, sir.  And I also have no idea whether

4   she was normal before or not.

5        Q.  You never met Ms. [REDACTED] before the IME,

6   have you?

7        A.  No, sir.

8        Q.  You’ve not spoken with anyone who’s talked

9   with people who knew Ms. [REDACTED] before the wreck,

10   have you?

11        A.  No, sir.

12        Q.  Does a person need to have the background

13   of a medical doctor to determine whether someone

14   sustained a concussion in a car wreck?

15        A.  I think it’s best.  I think a layperson can

16   identify a concussion.  They do it every day at high

17   school football games, but I don’t think they’re

18   qualified in every single case.

19        Q.  What about in this case, could one of

20   [REDACTED]’s friends who does not have medical training —

21   or strike that.

22            Could one of [REDACTED]’s friends who does not

23   have a medical degree make a determination as to

24   whether she sustained a concussion in this wreck?

25            MR. KEITH:  Object to form.


1        A.  I have no idea.  They could make a

2   determination, but who knows whether they’d be right

3   or wrong.


5        Q.  Could they make a valid determination?

6            MR. KEITH:  Object to form.

7        A.  Honestly, sir, they could only say yes or

8   no and they’d have a 50/50 chance of being right.


10        Q.  I see.  Could a person without any medical

11   training testify to a reasonable degree of

12   probability that someone in this wreck sustained or

13   did not sustain a concussion?

14            MR. KEITH:  Object to the form.

15        A.  I don’t think so because every other time

16   you’ve asked that question, you always said a

17   reasonable degree of medical probability or certainty

18   and you left it out of that statement.  I don’t know

19   if you did it deliberately or not.

20            What I can tell you is I don’t think an

21   untrained person could render an opinion to a

22   reasonable degree of medical certainty.


24        Q.  I left it out because we were talking about

25   without medical degrees.


1        A.  Very well.

2        Q.  Let’s talk about fees.  What is your hourly

3   fee for reviewing records?

4        A.  $400 per hour.

5        Q.  Is it 750 for testifying whether it’s

6   deposition or trial?

7        A.  Yes, sir.

8        Q.  Is that what you’ll be charging either Home

9   Depot or Home Depot’s lawyers going forward in this

10   case if you’re asked to do more work?

11        A.  Either one of those fees, whichever it is.

12        Q.  Who paid your IME fee, was it Hawkins

13   Parnell or Home Depot?

14        A.  I don’t know.

15        Q.  It appears looking at Plaintiff’s Exhibit 7

16   that Harkins Parnell paid the IME fee in this case.

17        A.  Yes, sir.  They’re listed as the

18   responsible party.  I can’t tell you with certainty

19   if that matches the person that signed the check.

20            MR. BUTLER:  You reckon they’re good for

21   it?

22            MR. KEITH:  I don’t know.


24        Q.  Other than the IME for which you’ve billed

25   in Plaintiff’s Exhibit 7 and the testimony that


1   you’re providing as we sit here right now, have you

2   done any other work related to this wreck for which

3   you expect to be paid?

4        A.  No, sir.

5        Q.  You said you do how many IMEs per week?

6        A.  One or two.

7        Q.  Are you doing fewer IMEs now than you used

8   to do?

9        A.  No, I don’t think so.

10        Q.  Are you doing IMEs now at about the same

11   rate as you were, say, in 2011, 2012?

12        A.  Yes, sir.

13        Q.  How much of your income comes from

14   litigation work to include record reviews, IMEs or

15   providing expert testimony?

16        A.  Five to seven percent.

17        Q.  Five to seven percent.  Is it true that the

18   total amount of income you receive on an annual basis

19   related to litigation could be in the neighborhood of

20   $250,000?

21        A.  I don’t know, sir.  That seems like an

22   overestimate.

23        Q.  What would you estimate?

24        A.  I just calculated the amount that I most

25   likely take in from IMEs to be about $144,000.


1        Q.  So in IMEs, you’re looking at about

2   $144,000 per year, is that right?

3        A.  Yes, sir.

4        Q.  And —

5        A.  That’s at a rate of 80 per year, which may

6   be generous.  Somewhere around there.

7        Q.  Do you also do record reviews as distinct

8   from IMEs?

9        A.  Yes, sir.

10        Q.  How many of those do you do?

11        A.  Maybe two a month.

12        Q.  You said two a month record reviews?

13        A.  Yes, sir.

14        Q.  Do you do any other work that’s related to

15   litigation other than record reviews and IME?

16        A.  When I’m called upon to testify.

17        Q.  As like an expert witness?

18        A.  Well, for instance, here.  I don’t know if

19   that’s my status or not.  I’m not a lawyer, but when

20   somebody calls and notices a deposition, obviously I

21   do it.

22        Q.  I see.  Do you ever testify in a case that

23   does not also involve an IME or a record review?

24        A.  Yes, sir.

25        Q.  How would you categorize that set of cases?


1        A.  Well, times I’m deposed as a treating

2   physician.  There have been times in the past when I

3   have given expert testimony in a medical malpractice

4   case, but that would fall under that same thing with

5   record reviews I guess.

6        Q.  So the number of record reviews you do, is

7   it still two per month if we include things like your

8   testimony in medical malpractice cases that we just

9   talked about?

10        A.  Yes, sir.  That’s maybe once every three or

11   four years.

12        Q.  How often per month are you asked to

13   testify in trial or deposition as a treating

14   physician?

15        A.  I’d say maybe five times per year.

16        Q.  Your overall litigation work, is it about

17   the same today as it has been for the last two or

18   three years?

19        A.  Yes, sir.

20        Q.  I think you brought your case list.

21            (Exhibit 10 marked.)


23        Q.  Have I marked the case list that you

24   brought to the deposition as Plaintiff’s Exhibit 10?

25        A.  Yes, sir.  Those are only cases in which


1   I’ve offered testimony either live or — I’m sorry.

2   Either in court or by deposition.

3        Q.  So this would not include IMEs or record

4   reviews where you did not testify?

5        A.  That’s correct.

6        Q.  And how far does this go back?  I see

7   you’ve already done one deposition today, is that

8   right?

9        A.  No, sir.  That was yesterday.  The date is

10   wrong.

11        Q.  I want to make a note so we fix that.  If I

12   strike out this 24 and write 23, as I’ve just done,

13   does that make Plaintiff’s Exhibit 10 accurate with

14   regard to the diffuse axonal injury date of the Joyce

15   Dunn deposition?

16        A.  That’s correct.

17        Q.  It appears the testimony list you’ve given

18   me goes back to 2000, is that right?

19        A.  Yes, sir.

20        Q.  Does this include all the occasions in

21   which you’ve testified since 2000?

22        A.  Unless some were accidentally omitted.  I

23   rely on my staff to keep that list.

24        Q.  In other words, you’re just not sure one

25   way or the other?


1        A.  Correct.

2        Q.  In terms of the breakdown in your work

3   between representing plaintiffs and defendants, is it

4   about the same now as it has been for the last two to

5   three years?

6        A.  I would say.

7        Q.  You would say yes?

8        A.  I would say yes, I’m sorry.

9        Q.  As of January of last year, a hundred

10   percent of your witness work was for defendants,

11   insurance companies or defense lawyers, is that true?

12        A.  As of January of last year?

13        Q.  January of 2012, yes.

14        A.  Do you mean from January 2012 to the

15   present?  I’m sorry, I’m not understanding.

16        Q.  What I’m referring to is an occasion last

17   year where you were asked a similar question in

18   January of 2012, and at that point you said in the

19   last two to three years a hundred percent of your

20   witness work had been for defendants, insurance

21   companies or defense lawyers.  Does that sound

22   accurate?

23        A.  It very well could be.  There may have been

24   one or two cases that weren’t.  Was that question

25   asked of IMEs or of all work?


1        Q.  I believe it was limited to testimony.

2        A.  Okay.  Then may very well be accurate.

3        Q.  Since that time have you ever testified

4   when you were not testifying on behalf of a

5   defendant, insurance company or defense lawyer?

6        A.  May I look?

7        Q.  Sure.

8        A.  Number one is a treating physician.  May

9   2nd, 2013, personal injury case, I testified for the

10   plaintiff.  June 27, 2012, personal injury suit, I

11   testified for the plaintiff.  January 19, 2012 was —

12   I’m not sure exactly what that was.  Somebody was

13   trying to override a last will and testament of one

14   of my patients by saying he was demented and I had to

15   give an opinion on that.  I don’t know how you’d

16   count that.

17        Q.  Sounds like what we call an undue influence

18   case.  Does that term sound familiar?

19        A.  Kind of does.  That’s since January of

20   2012.

21        Q.  So since January of 2012 the only two cases

22   in which you’ve testified on behalf of a plaintiff in

23   a personal injury case were May 2nd, 2013 and June 27

24   of 2012, is that right?

25        A.  Correct.


1        Q.  I think we went through these lawyers and

2   your work with Hawkins Parnell.  Yeah, we went

3   through that earlier.  I wanted to ask you to review

4   a few medical records with me.  We’re going to have

5   to do some marking here.

6            (Exhibit 11 marked.)


8        Q.  I’m now handing you some medical records

9   marked Plaintiff’s Exhibit 11, is that true?

10        A.  Yes, sir.

11        Q.  These appear to be records generated by

12   Dr. Peter Futrell, is that right?

13        A.  That’s correct.

14        Q.  Looking now on the second page, Dr. Futrell

15   concluded, quote:  This is most likely postconcussive

16   even though some symptoms started several days after

17   the trauma.

18            Did I read that correctly?

19        A.  Yes, sir.

20        Q.  Do you disagree with that statement?

21        A.  Yes, sir.  But, quite frankly, he was there

22   at the time.  I have lots of subsequent medical

23   records and her whole unfolded history to rely on.

24   But yes, I do disagree.

25        Q.  So on the basis of what you have reviewed,


1   you disagree with Dr. Futrell?

2        A.  Yes, sir.

3        Q.  Let’s turn to the next one.

4            (Exhibit 12 marked.)


6        Q.  I’m now handing you some medical records

7   that I’ve marked Plaintiff’s Exhibit 12, is that

8   right?

9        A.  Yes, sir.

10        Q.  And this is, on the top right you see that

11   page 1 of 19?

12        A.  Yes, sir.

13        Q.  Please turn to page 17 of 19.  These appear

14   to be the records of a Dr. Kristin Rigby, is that

15   right?

16        A.  Yes, sir.

17        Q.  And she diagnosed Ms. [REDACTED] with

18   postconcussive syndrome, is that true?

19        A.  Yes, sir.

20        Q.  Do you disagree with that?

21        A.  Yes, sir.

22        Q.  Let’s go to the next batch here.

23            (Exhibit 13 marked.)


25        Q.  I’ve now marked medical record as


1   Plaintiff’s Exhibit 13, is that right?

2        A.  Yes, sir.

3        Q.  This is the record of a Dr. Juan Armstrong,

4   is that right?

5        A.  Yes, sir.

6        Q.  Dr. Juan Armstrong said that Ms. [REDACTED]

7   had slurred speech, status post motor vehicle

8   accident most likely secondary to concussion

9   syndrome, is that right?

10        A.  Yes, sir.

11        Q.  Do you disagree with Dr. Armstrong?

12        A.  I don’t know what concussion syndrome is.

13        Q.  Insofar that Ms. [REDACTED] sustained a

14   concussion, you would disagree with Dr. Armstrong, is

15   that true?

16            MR. KEITH:  Object to the form.  You can

17   answer.

18        A.  Yes, sir.

19            (Exhibit 14 marked.)


21        Q.  I’m now showing you some medical records

22   I’ve marked as Plaintiff’s Exhibit 14, is that right?

23        A.  Yes, sir.

24        Q.  These appear to be the records of

25   Dr. Harben, is that right?


1        A.  Yes, sir, that’s correct.

2        Q.  And I’m looking on page 1.  At the bottom

3   it says “Assessment.”  Dr. Harben wrote:  Probably

4   postconcussion syndrome with impaired word finding

5   and articulation, rule out higher level cognitive

6   impairment.  Mildly impaired balance.

7            Did I read that right?

8        A.  Yes, sir.

9        Q.  Do you disagree with Dr. Harben?

10        A.  Yes, sir.  Well, I disagree with his

11   diagnosis of postconcussion syndrome which he

12   qualifies as probable.  Whether or not she had mildly

13   impaired balance on 9/25/2010, I have no way of

14   knowing.

15        Q.  So insofar as Dr. Harben concluded that

16   Ms. [REDACTED] had sustained a concussion, you disagree

17   with him, is that true?

18        A.  Correct.

19        Q.  I better do some more numbering of my

20   exhibit stickers.

21            (Exhibit 15 marked.)


23        Q.  I’ve now marked as Plaintiff’s Exhibit 15

24   some more medical records, is that right?

25        A.  Yes, sir.


1        Q.  And these appear to be the records of

2   Dr. Frank Puhalovich?

3        A.  Yes, sir.

4        Q.  I’d like you to look two places.  On the

5   first page he writes:  The patient is a 47-year-old

6   female who presents with a complaint of concussion.

7            And then on the second page under

8   assessments and plans, he writes concussion again.

9        A.  Yes, sir.

10        Q.  Did I read that right?

11        A.  You did.

12        Q.  Does that mean that Dr. Puhalovich means

13   that Ms. [REDACTED] had a concussion?

14            MR. KEITH:  Object to the form.

15        A.  Well, there’s two statements.  The first

16   one means that she presents with a complaint of,

17   which means she said it, not him.


19        Q.  Okay.

20        A.  And the second one is his assessment, and I

21   don’t know what less than 30 minutes means, if that’s

22   a time of the appointment.  Oftentimes with

23   concussion there’s a designation for the amount of

24   loss of consciousness.  So I don’t know what the less

25   than 30 minutes is.


1        Q.  It could mean she lost consciousness for

2   less than 30 minutes, although you’re not sure, is

3   that fair?

4        A.  Correct.  It could be the time of the

5   appointment as well.

6        Q.  Insofar as Plaintiff’s Exhibit 15 indicates

7   that Dr. Puhalovich concluded that Ms. [REDACTED] had a

8   concussion, you disagree with Dr. Puhalovich, is that

9   right?

10        A.  Yes, sir.

11            (Exhibit 16 marked.)


13        Q.  I’m now showing you a medical narrative of

14   Dr. Harben that’s been marked as Plaintiff’s Exhibit

15   16, is that right?

16        A.  That’s correct.

17        Q.  On page 2 at the very top he writes:  After

18   the wreck, her speech was impaired and she was having

19   difficulty walking.

20            Did I read that right?

21        A.  You did.

22        Q.  Do you have any base to agree or disagree

23   with that?

24        A.  Insofar as I don’t know exactly what he

25   means or when he means, I can’t just give a blanket


1   agreement to it.

2        Q.  Is it fair to say you have no basis to

3   agree or disagree with it?

4        A.  Correct.

5        Q.  Let’s turn to page 3.  At the very top he

6   writes:  Additionally, Ms. [REDACTED] reported that she

7   has experienced cognitive and physical fatigue after

8   the wreck.  She finds that she tires after brief

9   physical activity.

10            Do you have any basis to agree or disagree

11   with the accuracy of the symptoms described in that

12   passage that I’ve just read?

13        A.  No, sir.  I already told you you can’t

14   disagree with symptoms.  A person tells you them; you

15   can’t disagree with them.

16        Q.  You don’t have a basis to agree or disagree

17   with the passage there at the top of page 3 of

18   Plaintiff’s Exhibit 16, is that true?

19        A.  That’s correct.

20        Q.  In the third paragraph on page 3,

21   Dr. Harben writes, quote:  I concur with Dr. Futrell

22   and Dr. Puhalovich that Ms. [REDACTED] is suffering

23   postconcussive symptoms from a traumatic brain

24   injury, end quote.

25            Did I read that right?


1        A.  Yes, sir.

2        Q.  Do you disagree with Dr. Harben in the part

3   I just read?

4        A.  Yes, sir.

5        Q.  Let’s go to page 5.  It’s actually going to

6   be on page 5 and 6.  I’m going to read most of the

7   paragraph and ask you your opinion on it.

8            The passage I’m asking about is, quote:

9   Ms. [REDACTED] has been a cooperative patient and has

10   shown a strong desire to get better.  I have seen her

11   eight times since the wreck and each time she has

12   been pleasant and receptive to treatment.  She has

13   followed advice and maintained a positive outlook.

14            She is not lazy and has tried to return to

15   her preinjury level of function.  In fact, she worked

16   multiple jobs prior to the wreck and is trying to

17   resume as much of her prior work schedule as

18   possible.  I do not believe Ms. [REDACTED] is

19   malingering or exaggerating her symptoms.

20            Do you have any basis to agree or disagree

21   with that passage?

22        A.  I agree with it.

23            MR. KEITH:  Let me just object to the form

24   of the question.



1        Q.  And, doctor, I think you said “I agree with

2   it,” is that true?

3        A.  Yes, sir.

4        Q.  All right.  I’m pretty nearly out of

5   questions here so let’s take a break while I look

6   over the outline.

7            (Recess 3:51 to 3:54.)


9        Q.  It occurred to me as I was walking in the

10   door that I probably failed to mark some of your

11   file, which is not a good thing to do if you’re a

12   lawyer.  I’m thinking that this is the only part I’ve

13   missed.  Do you know of anything else I’ve missed?

14        A.  Well, does this mean everything in there?

15        Q.  Yes.

16        A.  Everything I brought in was contained in

17   those two red charts.  You removed some stuff and

18   labeled it and then this is the only other thing on

19   the bottom.

20        Q.  All right.

21        A.  This is one thing that is missing, sir, and

22   it’s bothering me and in the spirit of being truthful

23   with you, I’m actually going to look for it.

24        Q.  What are you looking for?

25        A.  Unless I’m confusing the cases.  A court


1   order.  There was a court order restricting what I

2   could ask her.

3        Q.  We’re probably okay without that in there.

4            MR. BUTLER:  What do you think, Mr. Keith?

5            MR. KEITH:  It’s a matter of public record.

6   I guess you could say did you receive a copy of the

7   court order?  You received a copy of it.

8        A.  I received a copy of it, but it bothers me

9   that I can’t find it and I don’t know where it is.

10            MR. KEITH:  If you say you had it.

11        A.  I had it.

12            (Exhibit 17 marked.)


14        Q.  Dr. McCasland, I’ve got two sheets in front

15   of me that I haven’t marked yet, one of them I’ve

16   just marked Plaintiff’s 17, is that right?

17        A.  Yes, sir.

18        Q.  It’s labeled Deposition Information Sheet,

19   true?

20        A.  Yes, sir.

21            (Exhibit 18 marked.)


23        Q.  And then the next one appears to be another

24   copy of the notice.  I’ve now marked that Plaintiff’s

25   18, is that right?


1        A.  Yes, sir.

2        Q.  Have I now marked everything on the table

3   that you’ve brought or is associated with your file

4   anyway?

5        A.  Yes, sir.

6        Q.  Do you believe that Ms. [REDACTED] presently

7   has any symptoms related to this wreck?

8            MR. KEITH:  Object to form.

9        A.  It has been a little while since I saw her

10   so things may have changed, but as I recall, she

11   complained of some neck pain that was ongoing.  I

12   have no reason to disbelieve her.  So she could very

13   well have some neck pain.


15        Q.  Other than neck pain, do you think

16   Ms. [REDACTED] presently has any symptoms related to

17   this wreck?

18            MR. KEITH:  Object to form.

19        A.  No, sir.


21        Q.  But she could have neck pain related to

22   this wreck?

23        A.  She could.  I’m not sure.

24        Q.  You do believe at one point she had a

25   cervical strain related to this wreck, but I take it


1   you’re not sure whether that resolved?

2        A.  That’s correct.

3        Q.  So the force was at least enough to cause

4   cervical strain, right?

5        A.  True.  Although you can get a cervical

6   strain watching television.

7        Q.  Would the forces at issue in this wreck

8   have been more than you would get chewing your food

9   or walking downstairs, stuff like that?

10        A.  Yes, sir.

11        Q.  Okay.  I see you laughing.

12            I saw — there’s one other thing I wanted

13   to ask you and that is about your waiting room.

14   While I was in your waiting room —

15        A.  You noticed the piece of art called

16   “Counsel Approaching The Bench.”

17        Q.  You are correct, doctor.  And I took a

18   picture of the piece of artwork called “Counsel

19   Approaching The Bench” and I’m now displaying it to

20   you on my iPhone, is that right?

21        A.  Yes, sir.

22        Q.  That hangs in your waiting room?

23        A.  Yes, sir.

24            MR. BUTLER:  Mr. Keith, would you like to

25   see it?  I’m going to e-mail that to opposing


1   counsel, if there’s no objection, and that will be

2   Exhibit Number 21 to your deposition, if that’s

3   agreeable?

4            MR. KEITH:  It’s your deposition.

5            MR. BUTLER:  I take that to mean that it is

6   agreeable.  And with that — this —

7        A.  This is the same artist, by the way.

8            MR. BUTLER:  All right.  With that, we’re

9   through.  Thanks.  No further questions, unless

10   Mr. Keith has any.

11            MR. KEITH:  Not today.

12            (Deposition concluded at 4:00 p.m.)

13            (Signature waived.)














1                       CERTIFICATE





6            I hereby certify that the foregoing

7   transcript was taken down, as stated in the

8   caption, and the colloquies, questions, and

9   answers were reduced to typewriting under my

10   direction; that the transcript is a true and

11   correct record of the evidence given upon said

12   proceeding.

13            I further certify that I am not a

14   relative or employee or attorney of any party, nor

15   am I financially interested in the outcome of this

16   action.

17            This the 24th day of May, 2013.





22            ______________________________________

23            Genevie Morell, RPR, CCR-2760